Volume 25

25 Fla. L. Weekly Supp. 481a

Online Reference: FLWSUPP 2505RICAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit of insurer’s expert is sufficient to create triable issue of fact as to reasonableness of provider’s charges — Provider’s motion for summary judgment is denied

25 Fla. L. Weekly Supp. 480a

Online Reference: FLWSUPP 2505POLOInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Affidavit of insurer’s expert is sufficient to create triable issue of fact as to reasonableness of provider’s charges — Provider’s motion for summary judgment is denied

25 Fla. L. Weekly Supp. 474a

Online Reference: FLWSUPP 2505COSTInsurance — Personal injury protection — Coverage — Medical benefits — Reasonableness of charges — Provider presented prima facie case of reasonableness through affidavit of its corporate representative and owner — Insurer created triable issue of fact sufficient to survive summary judgment through affidavit of its expert

25 Fla. L. Weekly Supp. 3a

Online Reference: FLWSUPP 2501CELEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charge — Insurer that failed to elect to use the fee schedule limitation in its policy was not precluded from litigating reasonableness of provider’s bill under section 627.736(5)(a)1, but is merely precluded from availing itself of the fee schedule limitation in section 627.736(5)(a)2 — Jury’s finding that amount charged by provider for MRI was unreasonable and its determination of a reasonable amount was supported by evidence, and trial court reversibly erred in directing verdict in favor of provider

25 Fla. L. Weekly Supp. 860a

Online Reference: FLWSUPP 2510MUSEInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — When considering reasonableness of particular charge, trier of fact may consider evidence pertaining to Medicare fee schedules that are referenced by and incorporated into PIP statute — Affidavit submitted by insurer in opposition to provider’s motion for summary judgment was legally sufficient to create genuine issue of material fact as to reasonableness of amount charged for X-ray services at issue — Trial court improperly applied Daubert admissibility standard to reject affidavit filed in opposition to motion for summary judgment — Remand for further proceedings

25 Fla. L. Weekly Supp. 857a

Online Reference: FLWSUPP 2510GABLInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Trial court erred in entering summary judgment in favor of plaintiff on issue of reasonableness of charges where affidavit filed by plaintiff in support of motion was conclusory and failed to prove nonexistence of genuine issue of material fact — Even if plaintiff’s submission of medical bills satisfied its burden, entry of summary judgment was erroneous where affidavit of insurer’s expert showed possible existence of disputed issue of material fact — Trial court erred in excluding insurer’s affidavit where affiant qualified as expert and affidavit contained analysis comparing amounts billed to reimbursement levels in community and various state and federal medical fee schedules that satisfied criteria that expert use generally accepted scientific method and that opinion be product of reliable principles and methods — Trial court also erred in excluding affidavit on ground that affiant relied on Medicare fee schedules to analyze reasonableness of charges when insurer did not elect statutory fee schedule method of reimbursement in PIP policy — Although Medicare fee schedule cannot be used to conclusively determine reasonable amount of charges, PIP statute provides that federal fee schedules are relevant factor in determining reasonableness of charges

25 Fla. L. Weekly Supp. 1040a

Online Reference: FLWSUPP 2512VALIInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will pay 80% of medically necessary expenses does not elect to limit reimbursement to statutory fee schedules — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit merely parrots statutory factors for determining whether charges are reasonable, is not supported by cognizable facts, sets forth conclusory opinion on reasonableness issue and excludes from consideration any charges above 200% of Medicare fee schedule — Where parties to this action previously litigated reasonableness of provider’s charges for same CPT codes to final judgment, doctrine of collateral estoppel precludes insurer from re-litigating reasonableness of charges

25 Fla. L. Weekly Supp. 1031a

Online Reference: FLWSUPP 2512ZALDInsurance — Personal injury protection — Coverage — Medical expenses — Statutory fee schedules — Clear and unambiguous election by insurer — PIP policy that states that insurer will pay 80% of medically necessary expenses does not elect to limit reimbursement to statutory fee schedules — Reasonableness of charges — Summary judgment — Opposing affidavit filed by insurer does not preclude summary judgment in favor of medical provider on issue of reasonableness of charges where affidavit merely parrots statutory factors for determining whether charges are reasonable, is not supported by cognizable facts, sets forth conclusory opinion on reasonableness issue and excludes from consideration any charges above 200% of Medicare fee schedule — Where parties to this action previously litigated reasonableness of provider’s charges for same CPT codes to final judgment, doctrine of collateral estoppel precludes insurer from re-litigating reasonableness of charges

25 Fla. L. Weekly Supp. 124a

Online Reference: FLWSUPP 2501NOLAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Collateral estoppel — Motion to apply collateral estoppel to prevent insurer from litigating reasonableness of charge for particular CPT code is granted where same parties actively litigated identical issue in 15 prior cases, issue was critical part of each prior case, and insurer was given full and fair opportunity to litigate issue in prior cases

25 Fla. L. Weekly Supp. 279a

Online Reference: FLWSUPP 2503ROMAInsurance — Personal injury protection — Coverage — Medical expenses — Reasonableness of charges — Summary judgment — Medical provider met burden of proving that charges for MRI scans were reasonable by introducing bill, assignment of benefits, and affidavit of its owner/corporate representative — Mere fact that insurer paid amount less than amount charged by medical provider does not create disputed issue of material fact precluding summary judgment — Opposing affidavit of non-expert that presents inadmissible lay opinion testimony and relies on inadmissible unauthenticated documents and settlement agreements is insufficient to create genuine issue of material fact and avoid summary judgment — Even if affiant were offered as expert, she is not competent to be expert witness where her opinions are not based on sufficient facts or data — Fact that Medicare and other types of insurers pay less than amount billed by provider does not, by itself, create factual issue as to reasonableness of charges — Where insurer has not elected in policy to reimburse in accordance with statutory fee schedules, evidence that limits maximum reasonable charge to amount equal to or less than 200% of Medicare fee schedule is not relevant or admissible